A Constitution is not a crusade

A Constitution is not a crusade

by Eben Wilson
article from Friday 1, March, 2013

AN INDEPENDENT Scotland has been offered a constitution by Alex Salmond. Actually, he suggested something crucially different, namely, “what I have in mind are constitutional provisions that go beyond those touchstone rights to embrace fundamental human concerns, the key economic, social and environmental needs of every citizen and the responsibilities of state and citizen towards each other.”

What Mr Salmond means by touchstone rights are the protections of fundamental freedoms offered by what is now called the European Convention on Human Rights. What he means by provisions beyond those fundamentals are offered as examples: he specifically chose a right to free education and a right to vital social services.

The crucial difference here is between what can be described as “negative rights” and “positive rights” – the former are rights protecting us from something, e.g. taking your house away – the latter are rights allowing access to something e.g. being given a house for free.

Mr Salmond rightly sees a new Scottish constitution as being decided by the people, but he actually presented this as a way of administering the creation of a constitution, through a sharing of ideas aimed at obtaining a result that could “reflect the values of the Scots people”.

Now I am beginning to get frightened.

You see, historic rights-based constitutions were founded on fundamental principles, and eschewed any value judgements about needs of citizens. Their framers understood that only negative rights were universal, while positive rights are constructs – and as such are skewed by the interests of those who promote them.

In addition, constructs need a constructor; that is, a self-interested party with the zeal to create the valued outcome. A constitution that offers such a role to human beings offers a powerful controlling power; backed by the forceful legitimacy of its own fundamentals in an operative loop that makes it very difficult to nay-say the proposed valus being protected.

So, imagine the Scottish state provided constitutionally-guaranteed free education that prosletysed about environmental values that were inimical to material progress, in turn backed up by government research programmes carried out by state-sponsored universities that promoted only evidence supporting the no-growth environmental arrangements.

Or, imagine that constitutionally guaranteed access to social services demanded the acceptance of commitment-free family arrangements that produced large numbers of disturbed, neglected and wayward children. Or that Scots were offered free social services that disincentivised them such that they no longer wished to work and soon enough no longer
could work due to spiritual lassitude. Ignorance and poverty become a state of victimhood guaranteed via supra-legal constitutional support.

These types of outcomes are a great way of creating a herd of obedient human sheep, but no way to create a free and vibrant nation.

The rot continues with the notion of “the responsibilities of state and citizen towards each other”. This is a thoroughly dangerous statement with enormous totalitarian potential. A constitution is a set of agreed rules that a people agree on for their common welfare – a people does not acquiesce to a requirement to act for the state in support of positive “rights” decided by the state, we consent only to release power to the state in the knowledge that that power is limited by that constitution conferring negative rights.

Take our less-than-imaginary free education and social services a bit further. What happens if the education fails to the extent that many of our children emerge from their free schools with little ability to count or write or enjoy classical literature or, horrors, understand the legal processes of jury service?

Or imagine that the cost of the social services for the dependent or the elderly rise to the point at which other freedoms begin to be lost through higher and higher taxation of enjoyable property, movement, defensive security and even cultural expressions in baccy and bevvy that cannot be countenanced because of their cost to the public purse?

These latter lost freedoms are of course the very touchstone rights to which Mr Salmond refers.

Positive freedoms generate threats to negative freedoms where the power exists to promote positive egalitarian outcomes over the diverse liberality of free action.

It would be jolly nice if it were safe to let government get on with it and sort out our needs under a positivist constitutional mandate, creating a Utopia that did not allow deprivation, homelessness and poverty. But we know from the choices governments make and their abject failure to resolve these issues (without repeated and increasing calls on the wealth of the self-supporting) that government grows to feed its own favoured entitlements, refusing to accept the realities of scarcity in resources, intellect and capability that define our struggle as mankind to create prosperity for all. You cannot create perfection by constitutional mandate – you only create “no more money”.

The fight between wealth-creating liberty and justice-seeking control will probably always be with us, but please let’s not choose one side or the other and formalise that inside a modern day socialist constitution. We saw too much penury and pain in the 20th century to repeat that mistake.

The enlightened thinkers of the 18th century who developed constitutionalised social orders out of the monarchical past were driven by a desire to escape from aristocratic political power. Liberality and the protection of private property created affluence and comfort from industrialised change – with universal democratic suffrage emerging from that to protect against capitalist aristocrat privileges and mercantilist monopoly power.

The twentieth century saw a fight to obtain liberation from state socialist power. That form of centralisation died when party aristocrats were found to be corrupt and incapable of offering democratic comforts and security to the masses.

Today, we are in desperate need to escape from post-socialist managerialist state power, a blind force rooted in Utopian dreams of justice and equality, but driven by special interests against whom ordinary citizens without access to the parlours of management and its tax purses are helpless. Economic democracy of private choice is threatened.

In our 21st century technological world where global and remote working, mass movement of people and ideas, and mobility of capital are commonplace, power concentrations, thankfully, can be rapidly broken down and dispersed. For Scotland to choose a constitutional settlement that offers privilege to the state and encourages concentrated power over the provision of knowledge and social comforts runs counter to the thread of history.

Indeed, the observable tendency of governments to grow to the point where there is no more money, and with deficits and debts so high that they threaten the very livelihoods of generations not yet born, has introduced a new phenomenon into constitutional development – economic constitutionalism.

It is no accident that Greece and Italy have, force majeure, had to discard democracy in favour of EU bureaucratically enforced limitations on the entitlement ambitions of their government. The “fiscal cliff” in the United States is a parallel phenomenon of higher magnitude where its legal traditions are being used to bring its government up short over past profligacy and future projections of truly terrifying multi-trillion dollar deficits.

Here, finally, is where I think an independent Scotland could lead the world in the adoption of a constitutional arrangement that outflanks the flounderings of bankers or lawyers. We need to establish a foundation for economic constitution for Scotland, and allow the people, not politicians, to vote on its strictures which would be based on negative rights.

I would suggest an Economic Constitutional Council for Scotland (ECCS). It would be a beefed-up Office of Budgetary Responsibility; dispassionately removed from politics, but passionately concerned that the Scots people choose the size of their government. ECCS would propose, on the basis of whatever cost benefit analysis could be obtained, an optimum size of government based on a menu of enumerated powers. It would mandate a balanced budget regime within a suggested timescale. It would arrange transparency over the level of intergenerational debt being accrued. It would thereby define our tax burden.

Then we would all vote. We could choose profligacy or even a road to bankruptcy, or we could choose parsimony, but we would all vote every five years on the total size of government, its menu of activities and their size, the budget balance and our debt accruals. Those parameters would be constitutionally binding on our politicians. Their Utopian
ambitions would be constrained to efficient direction of policy and focussed on services management.

You might think that we would all vote for more spending and entitlements as we appear to do so often now. However, that forgets that we would be voting via secret ballot about how our money is spent on ourselves, not through special interests voting on how other people’s money should be spent on other people. From surveys done of taxpayers and their opinion of their governments, we know that the common people believe that one in five pounds of our tax money is wasted. My hunch is that through time, we would see the people voting to reduce the size of their government by 20 percent.

In the process, if economists of a liberal persuasion are right about the supply side effects, we would see a galloping improvement in national economic growth, a huge reduction in unemployment and be able to reduce the burden of taxation massively. With an accompanying liberation from the dead hand of state managerial sclerosis in health education and welfare, Scotland could emerge as the most dynamic, special and, yes, even culturally egalitarian nation on Earth. Our children are globally savvy, globally networked, and globally cultured - while remaining members of a great Scottish global tribe; well-grounded in the plain-talking practicality of our Scottish psyche.

Perhaps I dream libertarian dreams, but I am sorry Mr Salmond, you scare me. Constructing a nation based on what some people think ought to be done via government is not a good idea. A constitution is not a crusade.

Eben Wilson is the Director of TaxpayerScotland which holds no corporate view on independence.

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